Mount Meru Millers and Another v Atlas Cargo Systems Limited (Miscellaneous Application No. 806 of 2022) [2023] UGCommC 294 (15 February 2023)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [COMMERCIAL DIVISION] MISCELLANEOUS APPLICATION NO. 806 OF 2022 [ARISING FROM CIVIL SUIT 436 OF 2018]** 10 **1. MOUNT MERU MILLERS 2. THE JUBILEE INSURANCE COMPANY OF ] APPLICANTS UGANDA LIMITED VERSUS** 15 **ATLAS CARGO SYSTEMS LIMITED ] RESPONDENTS**

### **Before Hon Justice Thomas Ocaya O. R**

# 20 **RULING**

# **Background**

The Applicant brought this application under the provisions of Section 98 Civil Procedure Act, Order 9 rule 18, Order 52 Rules 1 and 3 of the Civil Procedure

25 Rules S. I 71-1. The Applicant sought the following reliefs:

- a) The Order of dismissal and/or: termination of Civil Suit No.436 of 2018 be set aside - b) That Civil Suit No. 436 of 2018 be reinstated and fixed for hearing - c) Costs of this Application be in the cause.

5 The Respondent opposed this application.

It was the Applicants' case that they are the Plaintiffs in Civil Suit 436 of 2018 ["The Main Suit"] which they commenced against the Respondent. The Applicants contended that when the main suit came up on 10th March 2021, the matter was adjourned to 22nd March 2022. However, their counsel misheard the date for 22nd

10 April 2022 and when he attended court on that day, he found the matter dismissed. The Applicant filed this matter on 13th June 2022.

For the Respondent, it was contended that since the Respondent was absent on 10th March 2022, the Applicant had an obligation to extract and serve hearing notices [during the process of which the mistake would have been discovered] and

15 that the Applicants had not adduced evidence that their advocate had misheard the date.

#### **Decision**

The main suit was dismissed for non-appearance of both parties in accordance with the provisions of **Order 9 Rule 18** of the Civil Procedure Rules; which 20 provides thus;

"Where a suit is dismissed under rule 16 or 17 of this Order, the plaintiff may, subject to the law of limitation, bring a fresh suit or he or she may apply for an order to set the dismissal aside; and if he or she satisfies the court that there was sufficient cause for his or her not paying 25 the court fee and charges, if any, required within the time fixed before the issue of the summons or for his or her nonappearance, as the case may be, the court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."

Good cause has been defined in **Pinnacle Projects v Business in Motion** 30 **Consultants HCMA 362/2010** as "a legally sufficient reason". It has also been defined in **Dr. B. B Byamugisha v Alison Kantarama HCMA 229/2019** as "the legal burden place upon a litigant, usually by court, to show why a particular

5 request should be granted or an action or omission excused". The court noted that "good cause" was being used analogously with "sufficient cause".

Is good cause the same as sufficient cause? In Uganda, the expressions "Good Cause" and "Sufficient Cause" have been used interchangeably, and to mean the same thing.

10 In the Indian Case of **Parimal v Veema Civil Appeal No. 1467 of 2011**, the Indian Supreme Court defined "Sufficient Cause" this way;

""Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, 15 word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a 20 want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has 25 to be exercised judiciously."

In the case of **Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993** the Indian Supreme Court has this to say about "good cause" and "sufficient cause":

"The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof 30 than that of a "sufficient cause."

5 I note that the CPR uses "good cause" and "sufficient cause" in different instances. For instance, "good cause" is used in **Order 1 Rule 15, Order 36 Rule 11 and Order 9 Rule 21**.

On the other hand, the CPR uses "sufficient cause" in **Order 9 Rule 18, Order 9 Rule 26, Order 43 Rule 16 and Order 43 Rule 18**, among other instances.

10 A review of these rules quickly shows that the expression "sufficient cause" is used where a litigant must explain their default, or failure to take a step as directed by the law or court.

In my view, "good cause" and "sufficient cause" are not the same. "Good Cause" requires a party to show a legally sufficient reason why court should exercise a

15 discretion in their favour. Good cause may exist in spite of a party's own mistake; for instance, good cause may favour allowing a party amend a pleading to include a party who was mistakenly excluded or to amend their trial bundle and include a document they mistakenly forgot to include.

"Sufficient Cause" implies a much higher standard, requiring a party to show that 20 they are not guilty of a default, or that it cannot be attributable to them. For instance, where an unrepresented party is hospitalised on the day of court, and accordingly an exparte decree is entered against them, there is sufficient cause to set it aside, since their failure to attend court is not a fault of their own.

I do not believe the rules committee were being colourful when they used "good 25 cause" in one instance, and "sufficient cause" in another. They intended to apply two different standards.

Setting aside a Decree is not a routine or simple exercise of a discretion. Once a Decree is entered, it is ordinarily the end of the matter. However, the court is given unique powers to set aside its decisions either by way of appeal, review or setting

30 aside in certain limited circumstances.

Accordingly, a party who intends to set aside a decision of the court cannot merely show "good cause". They must show "sufficient cause" or a sufficient legally 5 justifiable reason, devoid of negligence or inaction on their part, to warrant setting aside of the decree.

I must add however, that even when there isn't "sufficient cause", the court will still be empowered to grant certain reliefs if "good cause" exists. For instance, where a complex dispute raising important questions of law of public importance

10 exists, and a party to litigation fails to file a defence and serve it in time, and brings an application for extension of time, there might be good cause to extend time, the good cause being the need to provide a judicial interpretation and guidance on the questions of law of public importance.

Therefore, the standard for sufficient cause is much higher than that for good 15 cause, and requires a party seeking the intervention of court to be free of culpability for the default causing the application.

In the case of **Rosette Kizito v Administrator General SCCA 2/1990**, the Supreme Court guided that the reason advanced as sufficient cause must relate to the inability to perform an act or take a step within the time stipulated for it to 20 amount to good cause. For instance, a party cannot claim that they were prevented

by illness from failing to attend court leading to a decree being entered against them exparte, yet such decree was entered for reasons unrelated to the same, such as the failure to file a defence.

In the instant case, the Applicants' contend that that the reason for their failure to 25 attend court was owing to a mistake of their advocate. The advocate misheard the date and appeared on the wrong date. The Applicant contended what whereas the suit was adjourned to 22nd March 2021, Counsel recorded 22nd March 2022, and accordingly attended court a year later and found the matter long dismissed.

The question is whether there is sufficient cause to set aside the order dismissing 30 the main suit. I find it relevant to consider some decisions on the point. In **Fred Kyewalabye v Richard Ssevune & Ors HCCA 1/2004**, counsel for the appellant had recorded a wrong date and attended court on the wrong date, and a little late. The court allowed the appeal and ordered for the reinstatement of the matter,

5 finding that the mistake was excusable, that the interests of justice demanded substantive justice be rendered and that a mistake of an advocate should not be visited on a client.

In the Kenyan case of **Dominic Mutisya Sammy v Tahir Sheikh Said Transporters Ltd [2018] eKLR** an advocate recorded and attended court on the 10 wrong mention date. They exhibited a copy of their diary entry reflecting the mistake. The court took note of the fact that the advocate had been regularly attending court and allowed the application to reinstate the suit. A similar decision, on almost identical facts, was entered in **Robinson Njeru Githae v Mae Properties Limited [2020] eKLR**.

- 15 In **P. N Mashiru v Gilbert Wanjala & Anor [2021] eKLR**, court dealt with an application for reinstatement of an appeal that had been dismissed after counsel recorded the wrong date for hearing. The court, in allowing the application, cited the decision in **Belinda Murai & 9 others vs. Amos Wainaina [1979] eKLR** where the court held thus; - 20 "A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of 25 experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of 30 appeal sometimes overrule. It is also not unknown for a final court of appeal to reverse itself when wisdom accumulated over the course of the years since the decision was delivered so requires. It is all done in the interests of justice. A static system of justice cannot be efficient. Benjamin Disraeli said

5 change is inevitable. In a progressive country change is constant. Justice is a living, moving force. The role of the judiciary is to keep the law marching in time with the trumpets of progress."

From the review of the decisions above, the position of the courts appears to be that an honest mistake of an advocate leading to non-appearance for a matter will 10 usually entitle their client to have the matter reinstated.

This is different from where failure to attend court is as result of manifest negligence or unjustified action or omission. For instance, where counsel comes to court late or a person not duly qualified purports to appear as counsel. In these circumstances, there typically isn't just cause to set aside judgments because there

15 is no bonafide mistake involved. See **Fred Byamukama & Anor v Unicargo Forwarders Ltd HCMA 773/2022**

Court hearings are serious matters and the court will hesitate to set aside a decision dismissing a suit (or directing it be heard ex parte) owing to a party's nonattendance. A court will only set aside its decisions in clearly deserving 20 circumstances and not simply at the request of parties.

#### Mistake of Counsel

It is trite law that mistake, error, negligence or error on the part of counsel should not be imputed on their client. [**Banco Arabe Espanol v Bank of Uganda SSCA No. 8 Of 1998**]

25 However, the plea of mistake of counsel is not a magic wand. As held in **Kateyo Eliezer v Makerere University LCMA 147/2021**, the legal proposition that a mistake or error of an advocate should not be visited on his client is not absolute; it depends on the circumstances of a given case.

Whereas advocates have to diligently and attentive take note of dates for when 30 matters are fixed or adjourned, they too are humans who are capable of making mistakes and recording the wrong date or time. The court should, where appropriate, excuse these mistakes and purpose to deliver substantive justice.

5 Where an advocate records the wrong date or erroneously fails to turn up to court (including turning up at the wrong day or time), the court should be excuse this if it shown that the mistake was genuine and not negligent.

Even then, the court should not visit the same on the advocate's client except if such action falls within the ambit of situations where this rule is in applicable. See

10 for instance [**Bishop Jacinto Kibuuka v Uganda Catholic Lawyers Fraternity & Ors 696/2018, Kalyesubula Fred v Obey Christopher HCMA 171/2016, Eriga Jos v Vuzzi Azza & Ors HCMA 9/2017**]

I found the evidence of the Applicants that the non-attendance was a function of an honest mistake by their lawyer who recorded the wrong date truthful.

15 Moreover, the Applicants' advocate had fairly diligently pursued the case up to that point, including filing a scheduling memorandum, trial bundle and extracting hearing notices.

In my view, a mistake of counsel in hearing, recording and attending court at the wrong date is sufficient cause justifying the non-attendance of counsel and 20 warranting the setting aside of the order dismissing the main suit.

However, before the Applicant's application can be allowed, the Applicant needs to demonstrate that this application has not been brought without undue delay.

# Inordinate Delay

An inordinate delay is a delay that is unusually or disproportionately large or

25 excessive. [**Abel Belemesa v Yesero Mugenyi HCMA 126/2019**].

Where a party takes an inordinate delay in seeking for a discretionary relief, the court is entitled to refuse to grant that relief. [see **David Muhenda v Humphrey Mirembe SCCA 5/2012**].

The Applicants contended that they came to know of the dismissal on 22nd April 2022 and this application was filed on 13th 30 June 2022, a period of almost two months.

5 What constitutes an inordinate delay depends on the circumstances of each case. Certainly, in matters before this court, advocates have to expeditiously take the necessary steps. This is because the nature of claims that come to this court are commercial or business related and timely adjudication and disposal of the same is vital. In **Gids Consults Limited & Anor v Bernard Ahimbisibwe HCMA**

10 **864/2022**, I held thus

"Commercial Disputes ought to be resolved quickly and expeditiously to avoid a thrombosis in the economy created by too much money being tied up in courts. This was the reasoning for the formation of the Commercial Court."

15 Considering the specific circumstances of this case, I find that a delay of almost two months to file this application an inordinate delay.

However, it does not follow that every application that is brought inordinately ought to be dismissed on the spot. In my view; the court should consider all the circumstances of the case and render a decision that will best achieve the justice

20 of the case.

In the instant case, all pleadings have been filed and are now closed. The dispute involves fairly large amounts of money and the applicants have, until the present facts, been fairly diligent in prosecuting their matter. Still, the Respondent has not shown that allowing this application will significantly and unfairly prejudice them.

25 In situations where a party is guilty of undue delay, an award of costs is often sufficient compensation for the adverse party.

In the premises, and in the interests of substantive justice being rendered, I allow the application.

Since this litigation would not have arisen without the mistake of the Applicants'

30 counsel, it would be unfair, even if the Respondent lost the main suit, to have them bear the costs of this Application. This is even more so since the Applicants delayed to bring this application.

5 Accordingly, I order that the Applicants meet the Respondent's costs for this application.

## **Conclusion**:

In conclusion I make the following orders;

- a) The Order of dismissal of Civil Suit No.436 of 2018 be set aside; - 10 b) Civil Suit 436 of 2018 be and is hereby reinstated. - c) The Applicants should immediately fix the suit for hearing. - d) Applicant pays the costs of this application

I so order.

Delivered electronically this\_\_\_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ 2023 and uploaded 15 on ECCMIS. 15th February

**Ocaya Thomas O. R**

**Judge,**

20 **15th February 2023**